Opinion
0112213/2004.
September 5, 2007.
The following papers, numbered 1 to 3 were read on this motion for summary judgment.
PAPERS NUMBERED
Notice of Motion/Order to Show Cause — Affidavits — Exhibits 1 Answering Affidavits — Exhibits 2 Replying Affidavits — Exhibits 3Cross-Motion: Yes [x] No
Upon the foregoing papers,
The court shall deny plaintiff's motion for summary judgment in this attorney malpractice action and shall also deny plaintiff's application for an injunction and attachment.
Plaintiff alleges that defendant attorney failed to respond to the discovery orders of an arbitration panel of the National Association of Securities Dealers, Inc. (NASD), thereby leading to the dismissal of plaintiff's claim by an Award of the Arbitration Panel dated March 4, 2003. Supreme Court, Westchester County (Bellantoni, J., Index No.: 8668/2003) by
Order dated September 17, 2003, confirmed the arbitration award over plaintiff's objection finding that plaintiff "never offered an excuse for his three-year failure to respond to respondents' discovery requests, despite four opportunities before the NASD, as well as in support of the instant petition, to do so."
"In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence."Davis v Klein, 88 NY2d 1008, 1009-1010 (1996). As further elucidated by the First Department in Dweck Law Firm, LLP v Mann ( 283 AD2d 292, 293 [1st Dept 2001]),
[I]n order to prevail in an action for legal malpractice, the plaintiff must plead factual allegations which, if proven at trial, would demonstrate that counsel had breached a duty owed to the client, that the breach was the proximate cause of the injuries, and that actual damages were sustained. Unsupported factual allegations, conclusory legal argument or allegations contradicted by documentation, do not suffice. Attorneys may select among reasonable courses of action in prosecuting their clients' cases without thereby committing malpractice, so that a purported malpractice claim that amounts only to a client's criticism of counsel's strategy may be dismissed. Moreover, the client must plead specific factual allegations establishing that but for counsel's deficient representation, there would have been a more favorable outcome to the underlying matter.
Dweck, 283 AD2d at 293 (citations omitted). Stated another way, "[i]t is well established that an action for legal malpractice requires proof of three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages. In order to demonstrate proximate cause, plaintiff must establish that but for the attorney's negligence, plaintiff would have prevailed in the matter in question or would not have sustained any ascertainable damages. The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v Olshan Grundman Frome Rosenzweig, 302 AD2d 193, 198 (1st Dept 2003).
The issue on plaintiff's summary judgment motion is not merely whether the defendant was negligent in the handling of plaintiff's matter, but also whether there is no issue of fact that but for the negligence of the defendant the plaintiff would have prevailed in arbitration. Plaintiff here has failed to establish "but for" causation as a matter of law. Even though the defendant's failure to comply with the arbitrators' discovery directives was the cited reason for the dismissal of plaintiff's claims, it does not necessarily follow as a matter of law that but for such dismissal the plaintiff would have prevailed in the arbitration. Plaintiff does not dispute defendant's contention that plaintiff rejected a settlement offer from respondents during the course of the arbitration proceeding. Furthermore, the respondents in the arbitration contested plaintiff's claims and plaintiff fails to submit on this motion copies of the respondents' answers in the arbitration proceeding such that the court could judge the likelihood of plaintiff's success had the arbitrators ruled upon the merits of plaintiff's claims. Nor has plaintiff introduced any expert testimony or other evidence demonstrating that plaintiff's claims were of such character that plaintiff would have prevailed in the arbitration.
Although the court shall deny summary judgment to the plaintiff, the court also finds upon a search of the record that the defendant is not entitled to dismissal of the action. The facts set forth by the plaintiff as to the claims raised in the arbitration could, if proven at trial, support a finding that the plaintiff would have prevailed on the merits of the claims in the underlying arbitration. Defendant introduces no evidence demonstrating that plaintiff's claims were meritless. Absent proof of a "fatal flaw" in the plaintiff's underlying case in the arbitration (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala Bass, LLP, 301 AD2d 63, 68 [1st Dept 2002] ["fatal flaw" in plaintiff's underlying case mandated dismissal of attorney malpractice action because "but for" causation could not be established]), summary judgment for the defendant is unsupportable (see Schwartz, supra, 302 AD2d at 198-199 [ambiguity as to contractual terms raised issue of fact as to whether plaintiff could establish "but for" causation in attorney malpractice action]).
The court shall also deny plaintiff's application for an injunction under CPLR 6301 preventing the defendant from transferring assets and also for an attachment pursuant to CPLR 6201. Injunctive relief as sought is not available where the complaint seeks only money damages and the plaintiff has failed to satisfy the requirements for an attachment under CPLR 6201 as no evidence has been adduced that the defendant "with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts." CPLR 6201 (3); Slavin v Rose, 156 AD2d 194, 195 (1st Dept 1989).
Accordingly, it is
ORDERED that plaintiff's motion for summary judgment and other relief is DENIED; and it is further
ORDERED that the parties are directed to attend a preliminary conference on October 2, 2007, at IAS Part 59, Room 1254, 111 Centre Street, at 9:30 A.M.
This is the decision and order of the court.